Biden And Universities Launch Sneak Attack On Free SpeechThe First Amendment supersedes the authority and whims of the Department of Education.
JULY 5, 2022
CHERISE TRUMP
The proposed new Title IX regulations by President Biden’s Department of Education have opened the door for universities to restrict and compel student speech even more than they already do. If universities follow these guidelines, students’ First Amendment rights will be jettisoned, rigorous debate will perish, and students’ tuition dollars will be diverted to litigate the free speech issues that will surely arise.
Title IX is a 1972 federal law which bars discrimination based on sex in education. It says that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The law empowers the Department of Education to create federal regulations implementing that directive. These regulations define discrimination “on the basis of sex,” outline how institutions should conduct investigations, and detail how they must treat all parties involved. As with many laws, presidential administrations have historically struggled to balance their federal Title IX regulations with the U.S. Constitution and the principles that govern the American way of life.
The most recent changes to Title IX regulations were made in 2020 to rectify some glaring and obvious shortcomings of previous administrations that raised multiple free speech and due process concerns. The 2020 rules were an important milestone in the history of Title IX because they employed the standard adopted by the Supreme Court in Davis v. Monroe County Board of Education. Under the Davis standard, universities can punish conduct, but they cannot punish pure speech. Schools can only punish expressive activity that is “so severe, pervasive, and objectively offensive” that it can be properly viewed as harassing conduct that effectively denies another student access to an education. This standard allows universities to regulate harassment under Title IX while complying with the First Amendment and protecting the rights of their students. Many universities, however, have disregarded the current federal guidelines and created harassment policies that shut down and chill student speech.
Universities have made it increasingly clear that they have an affinity for regulating student speech. Through various policies such as “free speech zones,” bias reporting systems, speech codes, and other restrictions, they have managed to chill student speech to a level we have never seen before. A tactic that often goes overlooked by the public, however, is when colleges and universities use harassment policies to target speech. So, before we discuss how bad it can get with these new Title IX regulations, we should understand how bad it already is.
Two things are currently happening on campuses. First, universities are disregarding the current regulations implemented in 2020. For example, New York University, has thrown out the “so severe, pervasive, and objectively offensive” standard entirely and replaced it with “from the viewpoint of a reasonable person under all the relevant circumstances.” What’s reasonable? What are all the relevant circumstances? Who is to decide? A Diversity Equity and Inclusion administrator who’s paid to find violations?
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Source:
https://www.theamericanconservative.com/articles/biden-and-universities-launch-sneak-attack-on-free-speech/
